A Legacy of Unequal Protection
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Copyright, Culture & Black Music: A Legacy of Unequal Protection by K.J. GREENE* I. Structure And Function Of The Copyright Regime.. 344 A. Origins and Purpose ................................. ... 344 B. Foundations of Copyright Law ............................ 348 1. Rights Protected by Copyright ........................ 348 2. The Idea-Expression Dichotomy ..................... 349 3. Requirement of Reduction to Tangible Form.. 351 4. Originality and Minimal Creativity ................. 351 5. Registration Formalities ................................. 353 II. Copyright and Culture ............................................. 354 III. African-American Artists & Intellectual Property ..... 361 A . Background ........................................................ 361 B. A History of Appropriation .................................. 367 1. Patterns of Inadequate Protection ................... 371 2. Harm To The Community ............................... 373 C. The Relationship Between Appropriation of African-American Music and American Copyright Law .................................................... 375 IV. Civil Rights As Intellectual Property Rights ............... 383 V. Toward Possible Prescriptions .................................. 388 A. Access to Legal Services ..................................... 389 B. Importation of Moral Rights Notions ................... 390 C. Heightened Standard of Originality ..................... 391 VI. C onclusion ............................................................... 39 1 * B.A., S.U.N.Y., Old Westbury, 1986, J.D., Yale, 1989, Assistant Professor, Thomas Jefferson School of Law, San Diego, CA. I would like to acknowledge Phil Harvey, John De Witt Gregory, Paul Kahn, Susan Bisson-Rapp, and Colin Crawford for valuable comments on the piece; any errors/omissions are my own. HASTINGS COMM/ENT L.J. [VOL, 21:339 Introduction This article explores a dynamic of Black history and the law largely ignored or overlooked by legal scholars: how African-American music artists, as a group, were routinely deprived of legal protection for creative works under the copyright regime. This perspective has only been faintly hinted at in legal scholarship, leaving Black artists as the "invisible" men and women of copyright jurisprudence. The issue of copyright deprivation and Black artists is highly significant, given the enormous cultural contribution of Black music to American society, the importance of the music to Black culture, and the tremendous economic benefits at stake. When one examines the history of issues like the exploitation of Black artists, there is the risk of falling into a "victim" perspective, with all its attendant emotional baggage. But the future for Black artists- and indeed artists of all races- will be brighter if we understand the pitfalls of the past. Moreover, as a society: to deal with what remains [wle have run away from race for far too long. We are so afraid of inflaming the wound the that we fail America's central social problem. We will never achieve racial healing if we do not confront each other, take risks, make ourselves vulnerable .... Copyright law and other intellectual property law theoretically provides neutral economic incentives to creators, and protects economic interests in original works.2 It has been 1. HARLAN L. DALTON, RACIAL HEALING: CONFRONTING THE FEAR BETWEEN BLAcKs & WHITES 4 (1995). 2. The source of Congress' power to protect authors and inventors is the United States Constitution, which provides that Congress shall have the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their Respective Writings and Discoveries." U.S. CONST. art. I, §8. The term intellectual property encompasses, broadly, patents, copyrights and trademarks. See Dale A. Nance, Foreword: Owning Ideas, 13 HARV. J. OF L. & PUB. POL. 757, 757 (1990) ("Roughly speaking, patents are federal statutory rights over novel inventions or designs. Copyrights are federal... rights over original literary or artistic expressions... trademarks are Identifications of commercial origin ...."); see also Justin Hughes, The Philosophy of Intellectual Property, 77 GEO. L. REv. 287, 294 (1988) ("A universal definition of intellectual property might begin by identifying it as nonphysical property which stems from, 19991 COPYRIGHT, CULTURE & BLACK MUSIC said that "[in essence, copyright is the right of an author to control reproduction of his intellectual creation."3 Yet this right has failed Black musicians and composers as a group in the recent past. Black artists as a class consistently received inadequate compensation, credit, and recognition for original works. 4 Part of the reason for the endemic exploitation of Black artists is the interaction of the copyright regime and the contract regime, a subject beyond the scope of this article, but one ripe for further exploration. While it is true that the music industry has generally exploited music artists as a matter of course,5 it is also undeniable that African-American artists have borne an even greater level of exploitation and appropriation. As new technologies continue to cause explosive growth in the value of information, the value of copyrights and intellectual property will continue to increase sharply. The Constitution established the copyright regime, but the rapid emergence of new technologies and multimedia have more recently "promoted [copyrights] from pawns to queens on the global chessboard."6 Increasingly, all artists will need to stay well-informed of intellectual property law to reap the full benefits of the emerging information super-highway' and is identified as, and whose value is based upon some idea or ideas. Furthermore, there must be some element of novelty."). 3. ROBERT A. GORMAN & JANE C. GINSBURG, COPYRIGHT FOR THE NINETIES, 13 (4th Ed. 1993) (citing Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law 3-6 (1961)). 4. The influence of blues artists on white rock and roll artists has been well- documented. It has been said, for example, that the British rockers the "Rolling Stones confirmed four basic rock and roll truths: attitude is (nearly) everything; rock's original sources (black and country music) remain its most fertile ones; Chuck Berry-derived rhythm guitar is rocks's essential sonic vehicle; and lyrics are most evocative when just short of indecipherable." ANTHONY DECURTIS & JAMES HENKE, THE ROLLING STONE ALBUM GUIDE 600 (1992). 5. See Theresa E. Van Beveren, The Demise of Long-Term Personal Service Contracts in the Music Industry: Artistic Freedom Against Company Profit, 3 UCLA ENT. L. REV. 377, 381 (1996), noting that "[riecording companies have traditionally taken advantage of their artists' ignorance, inexperience, lack of involvement, naivete and/or lower social status." 6. Alan J. Hartnick, Aid for Copyright Lawyers in InternationalTransactions, N.Y.L.J., Dec. 7, 1990, at 5. 7. The Internet, often called the "information super-highway" is a complex -communications network that links private and public computer networks, HASTINGS COMM/ENT L.J. [VOL. 21:339 multimedia works of art made possible by computer technology.8 The legal issues raised by these technologies will require ever more vigilance and sophistication to obtain and ensure the protection of original works of music and other artistic creations:9 a 'virtually unlimited future looms on the horizon for would-be thieves as popular forms of entertainment become increasingly available with just a few keystrokes at a computer terminal."10 Given the heightened importance of copyright in the information age, it is just as important to look backwards as it is to look forward. History teaches us that the social structure of our racially stratified society, along with structural elements of the copyright system- such as the requirements of tangible (written) form, and minimal standard of originality- combined to deny Black artists both compensation and recognition for their cultural contributions.1 systems and individuals. See Dan Thu Thi Phan, Will Fair Use Function on the Internet, 96 COLUM. L. REV. 169, 187 (1998) (The Internet is an international network of linked, overlapping, and interconnected computers and computer networks). See also First Amended Complaint, America Online, Inc. v. Cyber Promotions, Inc., Civ. Act. No. 96-462 (E.D. Va. 1996) (alleging use of the Internet to "as a tool to perpetuate fraud, [and] to misappropriate intellectual property."). 8. For an overview of multi-media, see Judith Merians, An Overview of New Technology and the Entertainment Industry, 1995-96 ENT., PUB. & THE ARTS HANDBOOK 241, 243 (1996) ("[blroadly defined, a multimedia work is one that results from the combination of images, sound, text, computer software and hardware."). 9. See Mark Litwak, Potholes On the Information Superhighway: A Road Map to Legal Issues in Multimedia Productions, 1995-96 ENT., PUB. & ARTS HANDBOOK, Edit. 199 (1995-6) (noting that numerous "legal hurdles to overcome in making even a simple multimedia program ...."). 10. John Gibeaut, Zapping Cyber Piracy, ABAJ., Feb. 1997, at 60-61.. 11. Few intellectual property scholars have examined the relationship between culture and copyright. This fact seems surprising since much of the subject matter of copyright- art, music, literature, dance- must be considered products of various cultures. Without cultural production, there would be no need for copyright. In this connection